Reports Reveal Two New Scandals in the Pepper-Spraying at UC Davis

An official investigation suggests there was no legal basis for the raid on the students that day. Meanwhile, California public employee rules prevent the pepper-spray cop from being fired.

After Lieutenant John Pike discharged a thick cloud of pepper spray at a group of non-violent student protesters on the quad at UC Davis last November, he returned to campus police headquarters, where video of the incident was soon displayed on a nearby television screen. Said a suddenly concerned colleague, Dispatch Supervisor Leticia Garcia-Hernandez, as she watched the footage for the first time: "John, that looked really bad." She wasn't alone in thinking so. Almost immediately the video went viral, spread by digitally savvy Occupy Wall Street protesters and mainstream media organizations struck by the brutality of the scene. His identity quickly outed, Lt. Pike became a figure of infamy even as he took off as an Internet meme, his visage Photoshopped into iconic scenes where he'd invariably deploy his highly-pressurized pepper spray in the unnervingly casual, almost offhand way that he had against the undergraduates.

When would Lt. Pike be fired? That's what many campus activists, professors, and faraway pundits wanted to know. Some called for the university's chancellor and police chief to resign too. Administrators responded by promising a thorough, independent investigation, a pledge they kept. Last week, a task force chaired by Cruz Reynoso, a former associate justice of the California Supreme Court, released its report, along with a separate, independent fact-finding document assembled by Kroll, a consulting firm that specializes in investigations. Both reports set forth a scathing indictment of the university administrators who ordered campus police to remove protester tents from the quad; the hapless chief of campus police; and the officers who carried out her orders. The reports concluded with pointed recommendations for improving UC police protocol.

What's garnered less attention are two details about the controversy that are scandalous in their own right. One concerns a telling assumption that almost every single observer made as they watched the UC police action on YouTube or The Daily Show or the nightly news. The other concerns the fate of Lt. Pike, who seemed to act indefensibly in that viral video -- and in fact did, two exhaustive investigations found, though their fact-finding is surprisingly irrelevant to his fate.

It Isn't Civil Disobedience If You're Not Breaking the Law

As Occupy Wall Street protestors camped out in parks, plazas, and other public spaces throughout the country, Americans became accustom to a familiar script: citing a threat to sanitation or public safety, municipal authorities would issue lawful orders for the protesters to abandon their camps by a certain deadline, after which police would be called to arrest them. Observers were divided about whether municipal authorities ought to keep permitting Occupy to camp or require their departure; and about whether resisting lawful orders was an act of civil disobedience in service of a larger moral point or an illegitimate exercise in posturing; but most everyone agreed that protesters were choosing to break duly enacted laws that had long been on the books.

Whether due to familiarity with previous Occupy coverage or the American tendency to trust police, almost every observer fit the altercation at UC Davis into the willful civil disobedience script: students were protesting by breaking the rules, and Lt. Pike used excessive force to respond. But the Reynoso and Kroll reports conclude that we were likely all wrong about that. The students had a right to be on the quad. Neither administrators nor campus police possessed clear, lawful authority to order their departure at 3 pm on a Friday afternoon. It turns out that the Occupy Davis protesters were following the law far more assiduously than the police forcibly dismantling their tents, spraying pepper into their mucous membranes and carting them off in flex handcuffs. And there's evidence that both administrators and campus police knew it!

Says the Reynoso report:

The police officers in charge of the police operation were uncertain as to the legal grounds for the action they were taking and consulted with University Counsel on the issue. Even on November 18, Police Department leadership continued to question their legal authority to remove tents during the day in order to implement legal prohibitions against overnight camping.

The Kroll report goes into more detail:

Despite the lack of clarity of the legal basis to remove the tents, the UCDPD operation plans for both November 15 and November 18 stated that camping was not allowed on campus and that tents would not be permitted... A few hours before the operation commenced, Chief Spicuzza, Lieutenant Pike and OfficerP sought legal advice regarding the laws that apply to camping on the UC Davis campus... This call was apparently placed because of the Lieutenants' continued concern over the legal basis for removing the tents, and the police operation was commenced only after this last-minute call.

The legal advice given in that call was kept secret from the independent investigators. But the Kroll report undertook its own analysis of the relevant laws, and found that each one cited by UC Davis administrators and police to justify their actions didn't apply. They failed to press "for a definitive legal assessment of the scope of its authority to order the removal of the tents," the report concluded. "Kroll has been unable to identify the legal basis for the decision of the Leadership Team to act against the protesters... It appears that the UCDPD mounted its operation absent the clarity of legal authority under pressure from the Administration to do something to get rid of the tents."

Sometimes when protesters scream at the police that they have every right to be somewhere, and that police officers have no right to arrest them, it turns out that the protesters are legally correct, and the police officers themselves are the ones who are transgressing against the rule of law.

The Fate of Lieutenant Pike

Along with excoriating UC Davis' leadership and its campus police chief, the Reynoso and Kroll reports conclude that Lt. Pike, whose actions caused the whole controversy to go viral, acted indefensibly. There's his most egregious act, captured in this straightforward assessment:

Lt. Pike Bears Primary Responsibility for the Objectively Unreasonable Decision to Use Pepper Spray on the Students Sitting in a Line and for the Manner in Which the Pepper Spray Was Used.

That is, however, just one aspect of his culpability. Lt. Pike reportedly disobeyed a direct order to deploy that day without riot gear. He carried with him a pepper spray disbursement mechanism bigger and more powerful than what UC Davis police are authorized to carry and use.

Apparently untrained in using that disbursement device, he shot pepper spray at a distance far closer than is recommended in its instructions for safe use. While claiming that he was afraid for his safety due to being encircled by students, Lt. Pike failed to perceive the openings in the circle confirmed by video evidence, and apparently did not know that one of his fellow officers was traversing the circle, prisoners in tow, without a problem. In planning and executing the raid, Lt. Pike made other errors that investigators judged partly responsible for the needless escalation. And one graduate student present that day insists Lt. Pike said that no one would be pepper sprayed by police unless they turned violent, information passed to the whole group via the human mic system. Finally, Lt. Pike reportedly failed to follow standard debriefing protocol.

After the incident, when Internet commenters the world over were calling for Lt. Pike to be summarily fired, it's good that he was instead placed on paid leave pending a thorough investigation. Under a hypothetical protocol, the UC Board of Regents could hire investigators to review video of the event, interview witnesses, and fire Lt. Pike a couple weeks later, having concluded that what the viral video seemed to show is basically what happened: a bunch of kids sitting on a quad were casually and needlessly assaulted with a bright orange cloud of pepper spray.

But that can't happen in the real world.

The actual investigative procedure was more thorough. Months were spent putting it all together. Lt. Pike was on paid leave all the while. It should have ended in his immediate firing when the Reynoso and Kroll inquiries found him culpable not just for the egregious excesses seen on the
video, but for other transgressions against good judgment and
professionalism.

But that isn't how things are going to work in this case either, for in California, a misbehaving police officer like Lt. Pike has due process rights so robust that its extraordinarily difficult to discipline or fire one, even if he's an international pariah caught on video marshaling unapproved equipment to needlessly spray harsh chemicals into the mucus membranes of non-violent protesters.

As the independent investigators noted, they weren't afforded the opportunity to speak with Lt. Pike because, like his boss, he refused to participate in the inquiry, which he could do without being fired. The recommendations of the Reynoso task force and the independent investigators didn't extend to firing or disciplining anyone, for relevant personnel matters were beyond the duties given them. Moreover, their damning findings won't play any role in whether or not Lt. Pike keeps his job, or faces any disciplinary measure at all, which could remain secret.

California law is the problem.

Here's how the Reynoso Task Force puts it:

The Office of the President should review provisions of the Police Officers' Bill of Rights that appear to limit independent public review of police conduct and make appropriate recommendations to the Legislature. The Task Force did not have access to the subject officers. This limitation does not serve the police or the public interest. When information necessary to understand and evaluate police conduct is unavailable to the public, the public has less confidence in the police and the police cannot perform their duty without public confidence.

So what happens to Lt. Pike?

Once placed on administrative leave, he was subject to an internal affairs investigation. The law requires that its findings alone can bear on personnel actions, never mind all the useful evidence collected by the independent consultants, or the analysis performed by the panel of esteemed statesmen. The internal affairs investigation into Lt. Pike's actions were conducted by Ed McErlain, a former police officer and "senior investigator for Norman A. Traub Associates, which specializes in employment investigations;" and Deborah Maddux Allison, "a partner with the Van Dermyden Allison Law Corporation, who specializes in employment law and workplace investigations." They were advised by Charles "Sid" Heal, another retired police officer.

Their method and findings are secret.

The public never gets to read them.

Their report was submitted to something called the Sufficiency Review Board, which is supposed to certify its quality and completeness in another secret process. And the secret internal affairs investigation won't necessarily lead to anything beyond the report itself. As UC Davis put it:

Any disciplinary action resulting from the IA investigations would be taken in accordance with University policies. Depending on the rank of the officer, this would involve various levels of process involving notice to any officer subject to a proposed disciplinary action, and an opportunity to respond. If disciplinary action were initiated, it would likely require several weeks to conclude.

That process would be secret too. "Any resulting personnel action that may be taken against a police officer is also confidential and not subject to public disclosure under state law," UC Davis states. Basically, California law dictates that all UC Davis can say about its most controversial officer is "the employment status of the officer, e.g., current employment status and rank."

For now, he still works there.

Thanks to the job protections California affords to this class of public employees, the thorough, independent review available to the public and the press has no bearing on the fate of the man who inspired it; whereas whether or not he'll continue to patrol among the very students he needlessly sprayed is determined by a secretive process wholly lacking in transparency, and accountable only to the administrative apparatus whose very failure helped cause the pepper spraying.

Can there be any doubt that this system prioritizes the job security of campus police officers above the safety and well being of students? It's possible that the secretive process will ultimately end in Lt. Pike's termination after many months of being paid. Regardless, it's time to reform a system wherein a public employee can abuse his authority in the most blatant and egregious way, and totally avoid being held accountable to independent investigators or the public. It's perfectly reasonable to take steps that ensure all facts are known before someone is terminated. What this case shows is that exhaustive fact-gathering that definitively establishes a public safety employee's inexcusable misbehavior isn't enough to fire him in California.

Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.